996 F2d 116 United States v. Okayfor

996 F.2d 116

38 Fed. R. Evid. Serv. 1189

UNITED STATES of America, Plaintiff-Appellee,
v.
Augustine Chikadili OKAYFOR (92-1706), and Tim Okosi
(92-1812), Defendants-Appellants.

Nos. 92-1706, 92-1812.

United States Court of Appeals,
Sixth Circuit.

Argued April 26, 1993.
Decided May 14, 1993*.

J. Michael Buckley (argued and briefed), Office of the U.S. Atty., Detroit, MI, for the U.S. plaintiff-appellee.

Kenneth R. Sasse (argued and briefed), Detroit, MI, for Augustine Chikadili Okayfor, defendant-appellant.

James C. Thomas (briefed), Detroit, MI, for Tim Okosi, defendant-appellant.

Before: GUY and NELSON, Circuit Judges; and WELLFORD, Senior Circuit Judge.

PER CURIAM.

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1

Defendants Augustine (Gus) Okayfor and Tim Okosi appeal their sentences for conspiracy to unlawfully import heroin into the United States, in violation of 21 U.S.C. §§ 952, 960, and 963. Okayfor also appeals his conviction, arguing that evidence of his possession of $15,000 in cash and a counterfeit alien registration card was unfairly prejudicial. Okayfor and Okosi object to the inclusion of 3.5 kilograms of heroin in sentencing calculations, arguing that no evidence was offered linking them to all of the heroin. Okayfor and Okosi also challenge the addition of three points to their base offense level for being managers or supervisors under U.S.S.G. § 3B1.1(b). We uphold Okayfor's conviction and the addition of three points to both Okayfor's and Okosi's base offense level for being managers, but remand for further findings regarding the proper quantity of heroin to be attributed to each of them for purposes of sentencing.

I.

2

Okayfor, Okosi, and six other defendants were charged with conspiracy to unlawfully import heroin into the United States. The indictment charged that the conspiracy lasted from approximately January 1991 through June 6, 1991, and indicated that the head of the importation ring was Gus Okayfor's brother, John Innocent Okayfor, a/k/a Jeff Anderson. John Okayfor was described as having organized the smuggling operation, including recruiting couriers, obtaining airline tickets, and providing money for expenses. The only evidence linking Gus Okayfor and Tim Okosi to the conspiracy came from the testimony of Gail McKoy, a co-conspirator and drug courier who was arrested on June 6, 1991.

3

McKoy testified that on January 29, 1991, she made her first importation trip. This first trip was coordinated and financed by John Okayfor. John arranged to have his brother, Gus, pick up McKoy who was living in Decatur, Georgia, and drive her to the airport in Atlanta. Upon arriving at the airport, Gus Okayfor paid cash for McKoy's flight to New York and also gave McKoy $300 for spending money. From New York, McKoy flew to Antwerp, Belgium, where she stayed for four or five days until she was given a package of heroin by two men. She returned to the United States on February 4 with an unspecified amount of heroin and was paid $5,000 for her trip.

4

A little over three weeks later, defendant Gus Okayfor was arrested by INS inspectors at the international airport in San Juan, Puerto Rico. Okayfor had $15,024 in United States currency hidden in a belt and shirt, a counterfeit temporary resident alien card, a credit card in the name of "John Okayfor," a Sprint phone card in the name of "Jeffrey Anderson," and a California driver's license issued to Augustine Okayfor. Okayfor arrived in Puerto Rico at 2:00 a.m. and was scheduled to return to New York at 7:00 a.m. the same day. Okayfor told the officials that he lived in Decatur, Georgia, but his return flight was to New York and his driver's license was from California.

5

In March 1991, John Okayfor set up another importation trip for Gail McKoy. This trip coincided with the trip of several other couriers. Kim Coleman, Larinda Whiters, and Catreda Edwards were recruited to go on a trip to Singapore and bring back drugs to the United States. John Okayfor arranged for these couriers to stay at various hotels in New York and Connecticut, paid for their plane tickets, and paid for Coleman's passport. On March 21, these three couriers flew from New York to Singapore. During this same time period, McKoy was flown from Atlanta to New York on a ticket paid for by John Okayfor. Upon arrival in New York, McKoy was introduced to another courier, Tamie Pinkston. John Okayfor paid for McKoy's passport and booked McKoy's airline ticket to Singapore through "Bill Tours," a travel agency in New York. McKoy and Pinkston flew to Singapore on March 20.

6

Once in Singapore, McKoy and Pinkston met up with Kim Coleman. Photos were introduced placing the three, together, in Singapore. Several days later, Coleman, Whiters, and Edwards were given packages of heroin and instructed how to conceal them. Coleman was to fly into Detroit via Tokyo, while Whiters and Edwards were to return later following the same route. Upon Coleman's arrival in Detroit on March 29, she was arrested by U.S. Customs agents. She had in her possession over one kilogram of heroin. She agreed to cooperate with authorities and named the other couriers, including McKoy, and advised the agents of their route. Authorities in Japan were contacted and Whiters and Edwards were arrested in Tokyo. At the time of their arrest, Whiters and Edwards were each in possession of under a kilogram of heroin. Together they possessed almost 1.5 kilograms. Gail McKoy learned of Coleman's arrest while still in Singapore, changed her itinerary, and on April 9 flew back to Atlanta via Amsterdam without any heroin. McKoy never directly spoke with John Okayfor again.

7

The following month, defendant Gus Okayfor contacted McKoy to see if she was interested in making another trip. McKoy requested to be paid double what she was paid for her first importation trip and requested that she travel alone. Although Gus Okayfor denied still working for his brother, he could not immediately agree to her conditions. He later called back and said he had the authority to meet her demands. McKoy flew from Atlanta to New York with a ticket that Gus Okayfor told her would be prepaid. Once in New York, she met Gus Okayfor and defendant Tim Okosi. Okosi drove the three of them to a Quality Inn near La Guardia Airport and gave McKoy money for a three-day stay. Okosi also gave McKoy two telephone numbers where he could be reached. McKoy later used one of those numbers to contact Okosi. Okosi instructed McKoy to get a visa for the African country of Cameroon and gave her an airline ticket to Washington, D.C., for that purpose.

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8

After McKoy obtained the visa and returned to New York, Okosi gave her an airline ticket to Cameroon and $500 in cash. She was instructed to go sightseeing in Cameroon and wait until they contacted her. While in Cameroon, Okosi met McKoy and paid her hotel bill. After giving her some more cash, he told McKoy that he had to go to Nigeria. When Okosi returned, he gave McKoy a package of heroin to be carried to the United States. She was told that when she arrived in the United States she should go to her hotel and wait for someone to meet her. She arrived in New York on June 5, 1991, and was arrested. At the time of her arrest, she had in her possession just over one kilogram of heroin. McKoy agreed to cooperate with customs agents.

9

After the indictment was handed down, Gus Okayfor was arrested in Hartford, Connecticut. At the time of his arrest, his wallet contained a business card for Bill Tours travel agency in New York with the telephone number for the Quality Inn near La Guardia Airport written on the back. Tim Okosi was arrested in West Haven, Connecticut.

10

After a jury trial at which Okosi testified, both Okayfor and Okosi were found guilty. The government argued, and the district court agreed, that the conspiracy involved approximately 3.5 kilograms of heroin--one kilogram brought into New York by McKoy, one kilogram brought into Detroit by Coleman, and 1.5 kilograms in the possession of Whiters and Edwards in Tokyo. The court did not consider the amount brought into New York on McKoy's first importation trip. The court assigned both defendants a base offense level of 34. The district court also found that both defendants played managerial or supervisory roles in the conspiracy and thus added three additional points to the base offense level. The district court overruled both defendants' objections to the inclusion of the total 3.5 kilograms of heroin and the three-point addition for being managers. Okayfor also challenged the presentence report placing him in criminal history category II. The district court sustained Okayfor's criminal history score objection and placed Okayfor in criminal history category I, which, combined with an offense level of 37, produced a sentencing range of 210-262 months. Okayfor was sentenced to 235 months' imprisonment and five years' supervised release. Okosi, whose sentencing range was the same, was sentenced to 230 months' imprisonment and five years' supervised release.

II.

11

Defendant Okayfor argues that the evidence introduced at trial concerning the events that occurred in Puerto Rico on February 28, 1991, was irrelevant and prejudicial evidence of another criminal act. The district court ruled that evidence of Okayfor's possession of the money and counterfeit resident alien card was admissible, but that Okayfor's misdemeanor conviction for possession of the card was inadmissible unless Okayfor testified. Defendant argues that under Federal Rule of Evidence 404(b) this evidence should not have been admitted. Rule 404(b) generally prohibits the introduction of testimony regarding other criminal acts "unless that evidence bears upon a relevant issue in the case such as motive, opportunity or knowledge." United States v. Loehr, 966 F.2d 201, 204 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 655, 121 L.Ed.2d 582 (1992). "[E]vidence of a criminal defendant's prior misconduct is inadmissible in the prosecution's case in chief to show the accused's bad character or criminal propensity." United States v. Ring, 513 F.2d 1001, 1004 (6th Cir.1975).

12

The government's response to defendant's argument is two-fold. First, the government argues that the evidence concerning defendant's illegal activities1 in Puerto Rico is not evidence of past misconduct or a prior crime, it is evidence of overt acts in furtherance of the heroin importation conspiracy. The government's main contention in this regard is that the events in Puerto Rico occurred during the time frame of the conspiracy. The government argues that the events in Puerto Rico occurred three weeks after McCoy returned from her first heroin importation trip and that the money in Okayfor's possession was relevant evidence of unexplained wealth after the commission of a crime, especially when he informed agents that he was employed cleaning offices. See United States v. O'Neal, 496 F.2d 368, 370-71 (6th Cir.1974). Okayfor's possession of the counterfeit alien registration card was relevant evidence concerning Okayfor's consciousness of guilt--he was seeking to conceal his travel. The card had Augustine Okayfor's name and picture on it, but the serial number was registered to a Mexican woman. The use of a counterfeit resident alien card is analogous to evidence of use of an alias. See United States v. Stowell, 947 F.2d 1251, 1255 (5th Cir.1991) (use of an alias is relevant as proof of consciousness of guilt), cert. denied, --- U.S. ----, 112 S.Ct. 1269, 117 L.Ed.2d 497 (1992).

13

The government's second argument is that even if Rule 404(b) is applicable, it would not preclude the introduction of this evidence. In order for evidence to be admissible under Rule 404(b), it must be established that: (1) the evidence is relevant for a purpose other than to show character or criminal propensity; and (2) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice under Rule 403. Huddleston v. United States, 485 U.S. 681, 686, 691, 108 S.Ct. 1496, 1499, 1502, 99 L.Ed.2d 771 (1988).

14

We agree that the evidence of Okayfor's possession of a large sum of money and a counterfeit alien registration card were relevant for the reasons advanced by the government. We also find the prejudicial effect of that evidence, if any, was outweighed by its probative value. The district court enjoys broad discretion relative to the admissibility of evidence pursuant to Rule 404(b). United States v. Ebens, 800 F.2d 1422, 1433 (6th Cir.1986). We find that the district court did not abuse its discretion in admitting this evidence. Additionally, even if the district court had abused its discretion, we would find the admission of this evidence to be harmless error. See United States v. Reed, 647 F.2d 678, 687 (6th Cir.) (evidence violative of Rule 404(b) did not adversely affect the substantial rights of the defendants to a fair trial), cert. denied, 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981).

III.

15

Pursuant to U.S.S.G. § 2D1.1(c)(5), the guideline provision applicable when the offense involves more than three but less than ten kilograms of heroin, both defendants' base offense level was set at 34. Both defendants appeal the calculation of their base offense level, arguing they were neither aware of the total 3.5 kilograms of heroin nor was this total amount reasonably foreseeable.

16

A district court's factual findings regarding the amount of narcotics for which a defendant is to be held accountable are accepted by this court unless clearly erroneous. United States v. Walton, 908 F.2d 1289, 1300-01 (6th Cir.), cert. denied, 498 U.S. 990, 111 S.Ct. 532, 112 L.Ed.2d 542 (1990). For sentencing purposes, the amount of drugs involved in a crime need only be proved by a preponderance of the evidence. United States v. Moreno, 899 F.2d 465, 473 (6th Cir.1990). However, a defendant is chargeable for the drug transactions of other members of the conspiracy only if they were known to him or were reasonably foreseeable to him. See United States v. Sims, 975 F.2d 1225, 1243-44 (6th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993); United States v. Hodges, 935 F.2d 766, 774 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 251, 116 L.Ed.2d 206 (1991). "Therefore, because 'the scope of conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy,' a sentencing judge may not, without further findings, simply sentence a defendant according to the amount of narcotics involved in the conspiracy." United States v. Lanni, 970 F.2d 1092, 1093 (2d Cir.1992) (quoting United States v. Perrone, 936 F.2d 1403, 1416 (2d Cir.1991)).

17

Under the guidelines in effect at the time of defendants' sentencing, a defendant's base offense level is determined on the basis of all acts "for which the defendant would be otherwise accountable." U.S.S.G. § 1B1.3(a)(1) (1991). The commentary further clarifies that, in the case of a conspiracy,

18

the conduct for which the defendant "would be otherwise accountable" also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant. Because a count may be broadly worded and include the conduct of many participants over a substantial period of time, the scope of the jointly-undertaken criminal activity, and hence relevant conduct, is not necessarily the same for every participant. Where it is established that the conduct was neither within the scope of the defendant's agreement, nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake, such conduct is not included in establishing the defendant's offense level under this guideline.

19

U.S.S.G. § 1B1.3, comment. (n. 1) (1991). A further amendment to this section meant to clarify and fully illustrate the operation of the guideline, U.S.S.G.App.C, Amend. 439, states that "the scope of the criminal activity jointly undertaken by the defendant ... is not necessarily the same as the scope of the entire conspiracy...." U.S.S.G. § 1B1.3, comment. (n. 2) (1992). "In order to determine the defendant's accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct and objectives embraced by the defendant's agreement)." Id. While this amendment was not effective when Okayfor and Okosi were sentenced, it is instructive as to the proper interpretation to be given to the 1991 version of U.S.S.G. § 1B1.3(a)(1). See United States v. French, 974 F.2d 687, 699 (6th Cir.1992) (using subsequent amendments to the guidelines to assist interpretation), cert. denied, --- U.S. ----, 113 S.Ct. 1012, 122 L.Ed.2d 160 (1993).

20

At the sentencing hearing, counsel for Okayfor objected to the inclusion of 3.5 kilograms to determine his base offense level on the grounds that there was no evidence that Okayfor was aware of, or reasonably should have been aware of, that quantity. After the government responded "that Mr. Okayfor is responsible criminally for the entire amount of heroin involved in the conspiracy," the court denied the objection, stating: "I agree with the government on that.... There is case law on that, where it's a conspiracy, a defendant is chargeable with the entire amount that's introduced by the government." In response to Okosi's similar arguments, the district judge stated: "The law is clear on that. He gets charged, anybody involved in a conspiracy [is] charged with the amount."

21

The record shows that the district court did not address, implicitly or explicitly, the scope of the criminal activity each defendant agreed to jointly undertake. The record only shows that the judge charged the criminal defendants before him, Okayfor and Okosi,2 with accountability for the entire conspiracy. Therefore, on this point only, we must remand for further proceedings. We emphasize we are only remanding for factual findings regarding the amount of heroin to be included in calculating the base offense level using the proper inquiry. The district court may come to the conclusion that the entire amount was reasonably foreseeable to either or both of the defendants, but the record must reflect such determination. Given the fact that no evidence was offered of Okosi's involvement in the conspiracy prior to May 1991, the district court should explicitly set forth the evidence on which it relies if it finds Okosi accountable for the entire 3.5 kilograms.

IV.

22

The final argument raised by defendants in their appeals concerns the three-point addition to their base offense level for being managers or supervisors pursuant to U.S.S.G. § 3B1.1(b). Defendants argue they were minor participants and should have been given a reduction in offense level under U.S.S.G. § 3B1.2. As we recently have held, "[t]he district court's determination as to role in an offense is a finding that is 'heavily dependent on the facts,' and the defendant has the burden of proving such mitigating factors by a preponderance of the evidence." United States v. Sims, 975 F.2d at 1242 (citation omitted). The district court was not required to cite specific facts to support its findings regarding defendants' roles in the conspiracy because it presided over the trial. United States v. Richardson, 949 F.2d 851, 859 (6th Cir.1991).

23

A district court's determination regarding a defendant's role in the offense is reversible only if clearly erroneous. United States v. Sims, 975 F.2d at 1242. We do not find the district court's determinations as to the roles Okayfor or Okosi played in this conspiracy to be clearly erroneous.

V.

24

Augustine Okayfor's conviction is AFFIRMED. Okayfor's and Okosi's sentences are VACATED and REMANDED to the district court for RESENTENCING in conformity with this opinion.

*

This decision was originally issued as an "unpublished decision" filed on May 14, 1993. On June 7, 1993, the court designated the opinion as one recommended for full-text publication

1

18 U.S.C. § 1546 proscribes the knowing use or possession of a forged or counterfeit alien registration card and defines the crime as a misdemeanor. 31 U.S.C. § 5316 provides that a person transporting monetary instruments of more than $10,000 to or from the United States at one time shall file a report with U.S. Customs. 31 U.S.C. § 5322 provides the criminal penalties for failure to so report. While these acts were criminal, no government witness explicitly testified that Okayfor even was arrested, let alone convicted

2

The other defendants charged were either at large, incarcerated, or had struck deals with the government in return for their cooperation

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